BRAZILIAN LEGAL MICROSYSTEM FOR THE "PROTECTION" OF PERSONAL DATA: A SUPPOSED EFFECTIVE GUARANTEE OF PRIVATE OWNERSHIP OF ONE'S OWN PERSONAL DATA

Abstract

From a philosophical and historical reflection on privacy, adopting as an initial theoretical framework the formulations of Yuval Harari on the impacts of biotechnology and artificial intelligence, and as a legal framework the conceptualization of ownership proposed by Roberta Maia, using the dialectical-argumentative method, this article critically addresses the supposed effectiveness of the General Law for the Protection of Personal Data (LGPD) in Brazil regarding the guarantee of private ownership of personal data. From the literature review and the analysis of recent judgments, it was found that, although the LGPD proposes to protect the fundamental rights of freedom and privacy and the free development of the personality of the natural person, the achievement of this objective encounters significant obstacles even in the face of the constitutional recognition of the protection of personal data as a fundamental right (EC No. 115/2022). The results point to a relativization of the private ownership of personal data by exceptions and open concepts that confer greater power and discretion to the processing agents (controllers and operators), so that the expressiveness of the hypotheses of waiver of the consent of the data subject and the recurrent appeal to open concepts, such as "legitimate interest" and "legitimate purposes",  are presented as an inversion of the protective paradigm. In the aforementioned cases of concrete application of the LGPD, the scenario reveals a tendency to shift a role theoretically directed to the holder of personal data, to economic agents, public and private, responsible for the processing of personal data. This finding reinforces the need to improve regulation and an effective supervisory and protective performance by the National Data Protection Authority (ANPD). Therefore, a more substantial balance is proposed between economic interests and the protection of the fundamental rights of the holders for the realization of the constitutional promise of primacy of the dignity of the human person to the detriment of a logic of the commodification of personal data and the submission of its holder to the condition of being a response in trade.